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How the Protect Arizona Now initiative could ensnare the state in a legal quagmire

Depending on whom you talk to, the Protect Arizona Now initiative that voters will decide Nov. 2 is either (a) a vitally needed law that will stop voter fraud and abuse of the welfare system by illegal immigrants; (b) a racist plot to further disenfranchise poor Hispanic residents of Arizona; or (c) a misguided effort that will trap the state in a legal quagmire that could end up costing hundreds of millions of dollars each year.

The PAN initiative, which will appear on the ballot as Proposition 200, basically revolves around the notion that illegal immigrants are subverting elections and leeching off the welfare system.

Proposition 200 would force anyone who wants to register to vote to provide proof of citizenship and require all voters to show picture ID when they cast a ballot. It would also force state employees to verify that anyone seeking public benefits under the state's welfare system isn't in the country illegally--and if they fail to do so properly, those state workers could face up to four months in jail.

The initiative is the product of activists on the Republican Party's right wing, including state Rep. Russell Pearce of Mesa, state Rep. Randy Graf of Southern Arizona and Republican National Committeeman Randy Pullen.

But as soon as supporters announced their petition drive, other Republicans began denouncing it. The state's entire congressional delegation--which has its share of conservatives--is vocally opposed to it, as are moderate Republicans like Pima County Supervisor Ray Carroll and Tucson Mayor Bob Walkup. Last week, Republican Grant Woods, who served as attorney general between 1990 and 1998, formed a political committee to oppose the initiative.

Graf, who lost his bid to unseat the more moderate Congressman Jim Kolbe in last week's GOP primary, says the split within the GOP "highlights the disconnect between the electorate and elected officials on the issue of illegal immigration."

But in the midst of the signature-gathering effort, the committee supporting PAN splintered as well. When it became clear that collecting the 122,612 valid signatures to qualify for the ballot would be impossible for a volunteer effort, the Federation for American Immigration Reform, a Washington D.C.-based group that takes a hard line on illegal immigration, entered the fray, funding a six-figure campaign to pay petition passers to gather signatures.

But FAIR's help wasn't greeted warmly by Kathy McKee, the chair of Protect Arizona Now, who objected and distanced herself from everyone else who was helping with the effort, recalls Graf.

"We were all fired on numerous occasions from that committee, and the last contact I had with Kathy McKee was in April," Graf says.

After some cajoling, McKee and the FAIR collaborators ultimately merged their petitions, giving the PAN initiative more than enough of a cushion to make the ballot.

Since then, several new political committees have sprung up on behalf of the initiative. McKee, meanwhile, has remained chair of the Protect Arizona Now committee and found new friends to help with the effort, including Virginia Abernethy, a professor emeritus at Vanderbilt University and a self-described "white separatist."

"PAN's appointment of Dr. Virginia Abernethy, an individual active in the leadership of multiple white supremacist organizations, has numerous disturbing ramifications," the report reads. "It legitimizes racism and xenophobia in the political arena, helping to 'mainstream' white supremacy."

Even supporters of the proposition hammered Abernethy. Leaders of FAIR, for example, sent out a press release saying Abernethy's views were "repugnant, divisive and do not represent the views of the vast majority of Arizonans who support Proposition 200. We do not know why she was appointed by Ms. McKee, but FAIR and everyone FAIR represents categorically denies and repudiates Abernethy's repulsive separatist views."

The FAIR release added that McKee "no longer has any useful role in any case."

The staff at the Center for New Community saw the FAIR release as just another attempt to take control of the effort from McKee--and they pointed out that FAIR staffers had worked alongside some of the same organizations as Abernethy.

The heated jibber-jabber appears to have done little to blunt popular support for initiative. Despite the high-level opposition to the proposition by political elites, an August poll by ASU pollster Bruce Merrill showed that 64 percent of likely voters supported the proposal. (About 10 percent said they thought Abernethy's addition to the campaign would improve its chances of passing.)

It's easy to see why voters would, in general, support the aims of the initiative. The idea that non-citizens are voting in elections is undoubtedly offensive to the majority of Arizonans, although there's scant evidence of widespread fraud by illegal immigrants. (And, as campaign veterans point out, with half the voters now mailing an early ballot rather than going to the polls, it'll still be relatively easy for determined political operatives to commit fraud.)

Likewise, few taxpayers are happy with the notion that illegal immigrants are on the public dole.

But the complexity of how federal dollars enter the state to pay for a large percentage of health and welfare benefits creates legal wrinkles that could cost the state far more than it might save from cutting off services to illegal immigrants--while at the same time putting state employees behind bars and forcing the state into protracted litigation.

If Proposition 200 passes, state employees would be forced to verify the identity of all applicants for public benefits. They would have to check with other government agencies to ensure that all applicants are U.S. residents. If they suspect an applicant is in the country illegally, they would be required to report them to federal immigration authorities; failure to do so would be a misdemeanor punishable by a fine or up to four months in jail.

To add to the potential legal chaos, Proposition 200 would allow any citizen who suspects someone is receiving benefits illegally to sue the state to force enforcement of the law--which means that state agencies could be under constant legal assault until all the judicial wrinkles are ironed out.

That process could take years, according to critics of the proposition, who say the initiative's poor drafting represents a major problem. As Attorney General Terry Goddard points out, the initiative makes reference to "public benefit," but that term isn't defined in state law, creating any number of problems with interpretation.

Given the uncertainty, the administration of Gov. Janet Napolitano recently asked state agencies to estimate the potential impact on their operations. The request urged departments "to construe the term åpublic benefit' in its broadest sense as it pertains to your agency."

As a result, state agencies have suggested the ultimate cost of implementing the PAN initiative could be staggering--as much as hundreds of millions of dollars a year, when considering the potential loss of federal dollars.

Graf argues that the Napolitano administration's estimates are vastly overstated and represent a "wish list" from state agencies.

"I don't think it's realistic at all," says Graf, who insists that the initiative only affects what he calls "Arizona's welfare statute," or Title 46.

Some of the memos from department heads do seem to stretch the likely outcome of implementing Proposition 200, unless the judiciary takes an extraordinarily broad view of the initiative. It seems unlikely, for example, that Arizona judges would conclude that a section of law pertaining to welfare benefits should be expanded to include emergency services provided by the Department of Public Safety, which suggested that the costs of complying with PAN could be as high as $11 million annually; or that the Department of Motor Vehicles would have to crosscheck the citizenship of every person who drives a car to an emissions test; or that the Department of Commerce would have to identify the citizenship of anyone who requested a tourism brochure.

But even if Graf is right about the extent of the PAN initiative, the law still promises numerous legal challenges that could take years of court action to resolve--especially considering the number of lawsuits that could be generated by even a small group of citizens on a crusade to stamp out fraud and abuse.

As Gil Jimenez of the Commerce Department puts it: "Obviously, this is a litigation bonanza."

Take just the problems that would involve the Arizona Health Care Cost Containment System, which manages the state's Medicaid program for low-income Arizonans.

The crux of the legal problem there, as Don Hughes of the AHCCCS sees it, is that Proposition 200 would put the state at odds with all sorts of federal regulations. For instance, it would require state employees to share information with the federal Bureau of Citizenship and Immigration Services, but federal law, for privacy purposes, forbids most disclosure of medical information. Hughes notes that if the state employees follow the federal rules, they could be breaking state law--but failure to comply with the federal law could mean that federal dollars are cut off from the program.

In any event, Hughes predicts the department is likely to face legal action both from citizens who want to cut off benefits and from advocacy groups challenging decisions to change eligibility requirements.

"If the ballot initiative passes, AHCCCS most likely will be one of the first state agencies sued to force compliance," Hughes writes in a memo regarding PAN. "There will be significant legal fees and court costs associated with this initiative as the Proponents will pursue this litigation to the Supreme Court."

And while that's happening, sick people who need treatment could find themselves denied coverage--setting the stage for a whole new round of lawsuits.

Then there are hypothetical questions related to the way in which government subsidies reach into all kinds of private businesses. Hughes points out one example: the potential impact on the Healthcare Group, which was created almost 20 years ago to help businesses that have up to 50 employees provide health insurance to their employees. Healthcare Group is funded primarily through premiums paid by the employers, but gets about $4 million a year through the general fund that helps subsidize the program.

So, Hughes wonders, would all employers who participate in the program now have to check citizenship of their employees under threat of lawsuit? One possible solution: eliminating the state's subsidy, with the end result being higher health-insurance costs for small businesses that are already struggling to provide coverage to their workers.

There's similar confusion about how the initiative would affect federal programs that are not federally mandated, but which provide federal funds if the state opts in. For example, the Arizona Department of Health Services administers three programs--Women, Infant and Children (WIC), Maternal and Child Health, and Children's Rehabilitation Services--with the help of federal grants that "specifically prohibit ... using citizenship status as a prerequisite to receiving services," according to another memo analyzing the PAN's impact.

Does that mean state workers are precluded from inquiring about applicant's legal residency status, as Prop 200 requires? That's another question that will be left to the feds and the courts, but state officials say Arizona stands to lose $185 million a year in federal grants, according to the analysis.

Another hypothetical raised in the memo: What about the work the Health Department does in the arena of communicable diseases that don't discriminate between legal and illegal residents? Would health workers have to check eligibility before testing people for sexually transmitted diseases, tuberculosis, HIV, hepatitis or lead poisoning? Would vaccination programs be affected?

Officials with the Department of Health Services also fret that the initiative could affect the delivery of mental-health treatment. Although those services are delivered by private contractors, the funds for the programs come from the state.

PAN's impact on welfare benefits also remains cloudy. According to another memo analyzing Proposition 200, the Department of Economic Security expects trouble because the process of determining legal status could delay the delivery of services ranging from food stamps to child-welfare benefits that applicants qualify for under federal law--some of which literally involve life-or-death situations.

In addition, DES farms out some programs through private contractors whose responsibility under the law remains sketchy.

And what happens to state programs that cover non-citizens? The state, for example, spends $2 million annually to cover medical and dental costs for foster kids who aren't citizens. And it spends another $21 million a year caring for developmentally disabled children and adults who don't have U.S. citizenship.

These are just a few of the legal knots the state will find itself wrestling with if the initiative passes. As one memo observes: "The costs are anticipated to be significant, and likely would exceed any savings projected from the denial of services to individuals who are not legal residents."

An even more confusing bureaucracy, fewer federal dollars, protracted civil litigation and state employees facing criminal charges: Protect Arizona Now sounds like it could turn out worse than the state's recent alt-fuels fiasco. When voters decide the fate of Proposition 200 on Election Day, they might want to keep in mind the words of H.L. Mencken: "There is always an easy solution to every human problem--neat, plausible and wrong."